Judge tells copyright troll to put up or shut up on porn lawsuits

Five "John Does" to act as test defendants in mass infringement lawsuit.

A Pennsylvania judge has decided to call the bluff of pornography publisher Malibu Media, which has filed lawsuits against hundreds of alleged copyright infringers around the country. A trial will go forward against five defendants in the Eastern District of Pennsylvania, giving everyone a chance to see if the plaintiff's accusations stand up in court.

For several years, pornography producers have pursued a controversial strategy: file lawsuits against a large number of BitTorrent users identified only by IP address, subpoena ISPs for their contact information, and then try to extract quick settlements from the defendants before their cases reach trial.

Critics charge that the plaintiffs in these cases have no intention of actually pursuing the lawsuits in court. Instead, they allegedly seek as many settlements as possible without regard for whether the targets are guilty or innocent. This summer, a California judge referred to Malibu's lawsuits in that state as "essentially an extortion scheme."

Pennsylvania federal Judge Michael Baylson shares others' skepticism about Malibu's tactics. "While Plaintiff’s strategy may sound rational on a superficial level, the joinder of multiple John Doe defendants could very well lead to litigation abuses," he wrote in an order last week. "The purpose of the joinder rules is to promote efficiency, not to use federal district courts as small claims collection agencies, by putting economic pressure on individuals who do not have substantive liability."

And Judge Baylson has come up with a clever way to put Malibu's arguments to the test. Out of the dozens of John Does sued by Malibu in Eastern Pennsylvania, five have filed objections to Malibu's subpoenas seeking their contact information. One of them filed a declaration specifically denying he had been trading files on BitTorrent. Another raised a number of legal objections to the subpoenas.

Judge Baylson has decided to move forward with a "bellwether trial" against these five defendants to determine how credible Malibu Media's accusations actually are. If Malibu can prove that the five Does really did infringe its copyrights, the judge is likely to let the lawsuits proceed against the other defendants. If, on the other hand, Malibu's evidence proves flimsy, the judge will view the lawsuits against the other defendants with skepticism.

Copyright trolls often drop their lawsuits when faced with defendants with the resources and inclination to fight back. But Judge Baylson strongly hinted that Malibu shouldn't try to back out this time.

"The Court assumes that Plaintiff will welcome this opportunity to prove its claims promptly," Judge Baylson wrote in last week's order. But, he warned, "if Plaintiff decides instead to continue to 'pick off' individual John Does, for confidential settlements, the Court may draw an inference that Plaintiff is not serious about proving its claims, or is unable to do so."

The judge acknowledges that singling out the five objecting Does to defend their lawsuits first is unfair to them. But he signals his intention to minimize the resulting financial burden.

"The Court assumes the defendants and their counsel will enter into a joint defense agreement to share work and expenses, and perhaps, if necessary, solicit others with interest in the outcome of these cases, for financial support," he writes. Moreover, he suggests that if the defendants win their cases, they will be eligible to recover their legal costs from Malibu.

Judge Baylson also ruled that the anonymity of the defendants would remain protected while the trial was being conducted.

Timothy B. Lee
Timothy covers tech policy for Ars, with a particular focus on patent and copyright law, privacy, free speech, and open government. His writing has appeared in Slate, Reason, Wired, and the New York Times. Emailtimothy.lee@arstechnica.com//Twitter@binarybits

Can't wait to see what the plaintiff says about this. Probably something along the lines of "This is totally unfair [insert bullshit reasons here]. Also, can we please have a default judgement, legal fees, and the kitchen sink?"

Baylson already kicked EFF & FSC out of court without even allowing them to present any evidence in the case Free Speech Coalition v. Holder. On appeal, the 3rd Circuit overturned Baylson, ruling that he had to at least give them a chance to present their evidence.

Baylson is in no way a friend of the EFF. Baylson is a career prosecutor and a Republican appointee. Ars leaves the impression that Baylson will give EFF, etc. a fair trial, but past history clearly shows that a fair trial is very, very unlikely to happen in Baylson's courtroom. The defendants had better set aside a huge amount of money to pay for appeals, because they are certainly going to need every penny.

"Bout damn time! The only question I have is why has this scam been allowed to go on for so long. It's pretty obvious to anyone with half a brain exactly what's happening and why. It also overloads our court system, especially with cases that plaintiff never intends to take to trial. THe court still has to process the case, entertain motions, schedule hearings, etc. All costs money.

I'm not familiar with class action lawsuits but if those 5 John Does presented filed objections, doesn't it mean everyone joined in the class action lawsuit should technically have the same objections?

It's pretty clear that this judge takes a dim view of the plaintiff. But! His background indicates a potential distaste for defendants in a case such as this so I really have no idea what's going to happen here.

This also strikes me as sort of an odd thing for a judge to do. I'm sure someone here could explain this action a little better, to my Non-Lawyer eyeballs it seems sort of flippant and unfair to all parties.

I'm not familiar with class action lawsuits but if those 5 John Does presented filed objections, doesn't it mean everyone joined in the class action lawsuit should technically have the same objections?

I'm not a lawyer, but I think this is the opposite of a class action suit. One company is suing a bunch of people rather than a bunch of people suing as a class.

I don't think the defendants are required to share legal teams or strategy, although the judge seems to be suggesting they do to save costs.

I would LOVE to hear Malibu prove that a specific individual was directly tied to that IP *without a doubt*

It is impossible.

It is not necessary. The standard at civil trial is not without a doubt, or even without a reasonable doubt. It's merely a preponderance of the evidence, also known as the balance of probabilities, which is a much lower standard.

It seems to me that the defendants shouldn't enter joinder. Yes, it will be more costly for them, but it also means Malibu will be forced to fight on five separate fronts, dividing resources in the process. By entering joinder, the defendants would be allowing Malibu to focus on a single case and using fewer resources, which would be advantageous for them. Which would turn the case into the proverbial "shooting fish in a barrel" scenario.

I'm also thinking that Judge Baylson is looking to end this extortion by helping them establish precedent that would strengthen future cases and make it easier to seek damages in court where they might find greater satisfaction. Consider that he encourages the defendants to enter joinder, which would consolidate the case and make them more manageable. Consider also, that he has encouraged Malibu to not simply back out at the first sign of a challenge, which implies to me that he feels they might have something to gain. However, it may be the opposite is true. He may believe that Malibu has no case and thus is wasting the court's time and wants them to put up or shut up. I can't make a determination either way without knowing how he's handled past cases involving individual copyright infringement.

It's pretty clear that this judge takes a dim view of the plaintiff. But! His background indicates a potential distaste for defendants in a case such as this so I really have no idea what's going to happen here.

This also strikes me as sort of an odd thing for a judge to do. I'm sure someone here could explain this action a little better, to my Non-Lawyer eyeballs it seems sort of flippant and unfair to all parties.

In layman's terms, the judge is saying the plaintiff is bluffing- either they don't actually have good evidence or they don't intend to actually take the cases to trial. So he's basically calling their bluff, and if they don't have a winning hand it could mean an end to their ability to use these tactics in the future.

That is, of course, a vast over-simplification of things, but it gets the general idea across.

@commenter 5 Thanks for the heads up. EFF's silence on this matter makes much more sense now.

Nonetheless, I'm rather optimistic. Having some distaste to EFF, this judge obviously has some distaste to pornographers as well (and court abusers too). According to my sources, he hinted that defendant-side discovery is unlikely, and if 1) plaintiff's evidence isn't convincing (which we expect) and 2) a defendant files a sworn affidavit that he did not do it, judge will let this defendant go.

An interesting observation from one of the commenters on my blog: he noticed that our community is rather excited about the prospect of a fair trial. Too much for a bunch of thieves and pirate apologists as trolls try to portray us!

The problem is going to be that civil trials don't require as heavy a burden of proof as criminal trials as someone has already pointed out.

What would be interesting to know is what would happen if the case came down to an unsecured wifi connection being used to download the files.

Does the defendant have to prove that it was someone on the open wifi connection or does the plaintiff have to prove that it was not someone using the open wifi connection?

Does the plaintiff have to prove which person it was.

Suppose that the person who's name is on the account is not a computer user. They're a parent or a roommate, the internet is part of a bundle with their cable company so it's their name that's on the bill. But, that person doesn't use computers. Does that end it right there?

If you go by "preponderance of the evidence", if the account has been properly identified, the odds are that it was done by the account holder or someone in the house. There is a chance that it could have been through unauthorized wifi use but the better bet is that it wasn't. Does that make the account holder guilty?

What kind of proof is reasonable? If the IP was properly traced back to the account holder and at least one of the computers in the house had evidence of downloading the file in question, then that certainly would pass the "preponderance of the evidence" test.

In layman's terms, the judge is saying the plaintiff is bluffing- either they don't actually have good evidence or they don't intend to actually take the cases to trial. So he's basically calling their bluff, and if they don't have a winning hand it could mean an end to their ability to use these tactics in the future.

That is, of course, a vast over-simplification of things, but it gets the general idea across.

I appreciate the response but I already gathered that the judge is calling what he believes to be a bluff. I thought that perhaps there would be a means of doing so that does not involve dragging everyone into a courtroom just so they all can agree that the plaintiff is in fact not wearing any pants.

@cvbg: it is an interesting topic for a theoretical discussion, but in this particular case judge seemingly (almost obviously) wants pornographer to carry the burden proof (see my comment above, 2 comments up).

It's not a topic that is up for debate. The person bringing the claim (the government in a criminal matter or a plaintiff in a civil matter) always has the burden of proof.

They have to prove each element of their claim by a preponderance of the evidence. Preponderance, as has been described before, essentially means more likely than not. This means that it will be Malibu's job to prove that it is more likely that it was the Defendant (or someone the Defendant is legally responsible for, like a child) that did actions X, Y, and Z that constitute whatever claim is being pushed (I haven't read the Complaint).

If, after all of their evidence, it is still no more than a coinflip, the Plaintiff loses, because it is their burden to prove that it is more likely. It doesn't have to be much more likely, substantially more likely, and reasonable doubt never enters the equation. But, at the end, if the best they can put forward is maybe yes, maybe no, Malibu will lose.

They have to prove each element of their claim by a preponderance of the evidence. Preponderance, as has been described before, essentially means more likely than not.

OK, let's say they just have screenshots of IP addresses on certain days participating in swarms uploading & downloading the pornography at issue. They'll cite cases where judges have said this is good enough to get the subscribers named, served, and a default judgement made against them.

The subscribers don't have the option of saying "I did it, but it's OK, because I didn't really hurt anybody." They have to say "it wasn't me, you got the wrong guy" and they'll cite some cases from other circuits where judges have said an IP address user isn't necessarily the right person. Even at this point, it doesn't look good for the defendants, because this particular judge is known (or at least perceived) to be sympathetic to copyright owners.

So then what happens when discovery reveals that the subscribers who were assigned those IP addresses on those days have hard drives full of gay porn, perhaps including the movies at issue? Or evidence of BitTorrent software, or unauthorized downloads in general? When this is presented to a jury which was deliberately selected so as not to include anyone with experience in file-sharing... I hope I'm wrong, but I just don't see it going very well for the defendants. The preponderance of evidence will be sufficient to find them liable.

You're right they don't have the option to say it's harmless. That's not an option under the law.

This judge has already said that these 5 Does will get to maintain their anonymity through the trial, so Malibu has a case, one of whom is, e.g., Doe #1 at IP 200.100.110.100.

Through trial, Malibu will have to prove that the owner of the PC assigned to that IP was uploading the movie at whatever time the screenshot shows.

Discovery will likely include a forensic search of Doe #1's PC (or PCs) to see if there is evidence of the video in question. Relevant evidence would include torrent client(s) or the video in question. Other stuff may be found, but it would likely never be shown to the jury. Just because something comes out in discovery doesn't mean it will be used at trial, it must be relevant to the specific claims of trial and admissible under all of the other rules.

Unrelated porn is unlikely to come in at all, other torrented files stuff would likely only come in if Doe #1 said they had never torrented anything ever.

Back to the earlier point about Doe #1 being the actual guilty party, it then gets into an ugly legal grey morass. I don't think any federal judge has yet (or will imo) hold that a person has a duty to secure their router. If it can be established, or argued without any credible counter, that the WiFi was open, and there is no evidence on Doe #1's PC, I don't see a judge or jury finding against Doe #1.

But the big point of this entire ruling by this particular judge is, has been mentioned, that he is calling the troll's bluff. Also, in most civil cases, you don't get your attorneys' fees paid by the other side if you win. Discovery is EXPENSIVE, especially in federal court. Unbelievably so. If Malibu has to pay a 5-figure some to their attorneys (including expert fees for the forensic stuff, deposition of Doe #1 [which strikes me as problematic given anonymity has been guaranteed through the conclusion of the trial], the various phases of discovery, motion practice, etc.) their entire calculus changes.

I don't think Malibu ever expects to be able to collect a $150,000 judgment from a random citizen. They would just declare BK and wipe it out. But what if you have a even quasi-sympathetic judge or jury who awards $5k for uploading the movie? Now Malibu has spent $15,000 to collect $5,000, and no company can stay in business long doing that.

You say unrelated evidence is unlikely to come in at all, but in Sony v. Tenenbaum, before the defendant flat-out admitted liability, the jury got to hear all about how his hard drive was brimming with downloaded, shared music. Neither the plaintiffs nor the jury were told to ignore everything unrelated to the actual files at issue in the case. Instead, the court allowed him to be cast as a repeat infringer, recklessly and willfully disregarding copyright on thousands of songs aside those actually being sued over. This was held against him in the appeal and subsequent rulings. So I'm skeptical that Malibu will be forbidden from introducing peripheral evidence of unrelated copyright infringement. If the defendants aren't squeaky clean, Malibu will use whatever they can against them.

There is a "self-incrimination privilege" in civil discovery. That means you don't have to provide evidence that might show that you committed a crime. That should shut down any attempts to forensically examine the hard drives of the defendants.

In addition, EFF vigorously advocates the use of free TrueCrypt software to encrypt hard drives. In an 11th Circuit case earlier this year, the FBI admitted that it could not crack TrueCrypt's encryption of the hard drives of a child porn defendant, so the FBI then tried to force the defendant to give up the password - but the 11th Circuit upheld the "John Doe" defendant's right to remain silent. That case is very easy to find - just do a search for "TrueCrypt" on EFF's website, and click on the first result.

Cool down, guys. Before any defendant' discovery even a possibility, plaintiffs' evidence must be accepted, which is a huge question given the fact that the German IP harvester is an interested party, i.e. is paid on contingency basis. Any honest court would consider such evidence as a non-admissible garbage.

And I repeat one more time: judge has hinted that in case he is not convinced by the pornographer's "proof," he won't allow any discovery, sworn affidavit "I did not do it" will be enough.

Cool down, guys. Before any defendant' discovery even a possibility, plaintiffs' evidence must be accepted, which is a huge question given the fact that the German IP harvester is an interested party, i.e. is paid on contingency basis. Any honest court would consider such evidence as a non-admissible garbage.

And I repeat one more time: judge has hinted that in case he is not convinced by the pornographer's "proof," he won't allow any discovery, sworn affidavit "I did not do it" will be enough.

I mean no offense, but you don't know what you're talking about. There is no "test" the Plaintiff's evidence will have to pass before discovery can commence.

In federal litigation, the common next step after a complaint is filed (assuming no settlement talks) is for the defendant to file what is called a motion to dismiss, usually under Fed.R.Civ.P. 12(b)(6). What that rule basically boils down to is that if, solely for the purpose of the motion, the court assumes every inference in favor of the nonmovant.

What this means in this case is that the court, again only for the purposes of the motion, has to assume that everything in the complaint is true. It then sees if the claim can survive as a matter of law.

If the suit can move forward, then both sides can do discovery at the same time. It won't be after discovery is completed that the worth of the evidence will be tested in a motion for summary judgment

No offence taken: I'm obviously not a lawyer, thought I learn as I go forward and all ears when a professional speaks, even if he points at my ignorance. Two years ago I would be surprised if someone would tell me that civil and criminal procedures are different. I've never been in a courtroom and was surprised to learn that judges don't use wooden hammers that are pictured on every other lawfirm's website.

So yes, my statement is legally illiterate, it is based on a lawyer's line from an article: "No reports, investigations or testimony would be admissible in an honest court because they would be found to have been issued or given by a “biased expert” or one who has a financial interest in the outcome of the lawsuit," which I seemingly understood out of context.

I correct myself by saying that "given the fact that the German IP harvester is an interested party, i.e. is paid on contingency basis, and if this fact is obvious without discovery, plaintiff's claim won't survive a decent motion to dismiss." Is it better?

Next, it's the judge who determines the scope of a requested discovery, he may not allow it at all, requiring defendants to file sworn affidavits instead. And Judge Baylson hinted that he may do exactly that. At what stage? I don't know.

It's good to see more and more of these Judges getting wise to these gestapo like tactics of these copyright trolls. Let's hope these 5 defendants win.

I'm not any more fond of the plaintiffs that you are, but I think it would be quite a stretch to call their tactics "gestapo like". Have they used extreme force on their defendents or whisked them away to detention facilities in the middle of the night?

This should have never gone to trial. A lot can happen from a slick mouth.

It hasn't gone to trial...

sophisticatedjanedoe wrote:

So yes, my statement is legally illiterate, it is based on a lawyer's line from an article: "No reports, investigations or testimony would be admissible in an honest court because they would be found to have been issued or given by a “biased expert” or one who has a financial interest in the outcome of the lawsuit," which I seemingly understood out of context.

I correct myself by saying that "given the fact that the German IP harvester is an interested party, i.e. is paid on contingency basis, and if this fact is obvious without discovery, plaintiff's claim won't survive a decent motion to dismiss." Is it better?

"would be admissible" is a ruling for trial time, has largely nothing to do with the discovery process. Lots of inadmissible stuff can be uncovered in discovery

In addition, EFF vigorously advocates the use of free TrueCrypt software to encrypt hard drives. In an 11th Circuit case earlier this year, the FBI admitted that it could not crack TrueCrypt's encryption of the hard drives of a child porn defendant, so the FBI then tried to force the defendant to give up the password - but the 11th Circuit upheld the "John Doe" defendant's right to remain silent. That case is very easy to find - just do a search for "TrueCrypt" on EFF's website, and click on the first result.

I find this kind of advocacy very disappointing. While I support without question the rights of individuals to encrypt their data to maintain their privacy, I am thoroughly disappointed when people or groups like the EFF advocate using encryption to hide illegal activity. I am disheartened that the EFF has chosen to wave the successful "defense" of a child pornographer as a banner in support of encryption.

While I don't know what sort of balance to strike -- how it can be possible to advocate widespread use of encryption for the preservation of personal privacy while not advocating the widespread use of encryption to hide illegal conduct -- I do not feel it is in the best interests of society to highlight how encryption can be used to circumvent prosecution for illegal activity.

To whomever downvoted my last post, I certainly hope you're simply misunderstanding what I'm saying. I'm saying nothing more than I think it's a mistake to use an accused child pornographer as a poster child (no pun intended) for how great encryption is. This sends the wrong message to the people that need convincing.

I don't understand this judge's logic. He admits it's unfair to pick the 5 Does that submitted objections but does it anyway. Furthermore he's essentially telling them to join up for their defense. Haven't judges been slamming the prosecutors for a while now telling them there is no basis to join the defendants? Now he's telling the defendants to do just that? Very odd. This appears to give the prosecutors more ammo to bring a huge slew of names into court all at once rather than doing individual discovery.

No surprise: trolls have already started playing games and delay the trial. Below is a copy of my blog's comment that details the latest update:

Update: I decided that this information deserves a separate post. So I removed the obsolete copypasta from this comment.

Since I was accused of linking to my posts before, I want to assure you that this post is 100% relevant to the topic, and that I don't care about the number of impressions because I don't run ads and make $0 (actually a negative amount, given my time and expenses).